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Cite as: [2002] UKEAT 191_01_2103, [2002] UKEAT 191_1_2103

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		BAILII case number: [2002] UKEAT 191_01_2103
		Appeal No. EAT/191/01 EAT/197/01 EAT/198/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 March 2002

Before

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MR J R CROSBY
LORD DAVIES OF COITY CBE

EAT/191/01
MS WANGUI WA GORO APPELLANT

(1) LONDON BOROUGH OF HACKNEY
(2) MS JANET DOBSON
RESPONDENTS

EAT/197/01
EAT/198/01
LONDON BOROUGH OF HACKNEY APPELLANT

MS WANGUI WA GORO RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

FOR MS WANGUI WA GORO	MS K MONAGHAN (of Counsel) Instructed By: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW
FOR LONDON BOROUGH OF HACKNEY AND MS JANET DOBSON	MR A BUTLER (of Counsel) Instructed By: Hackney Legal Services 183-187 Stoke Newington High Street London N16 0LH

MR JUSTICE LINDSAY (PRESIDENT):

We have before us three appeals, two by the London Borough of Hackney, Ms Wa Goro's former employer, and one by Ms Wa Goro, a black of Kenyan origin, the applicant below, who was an Equalities Assessment Officer in Hackney's Education and Leisure Services Directorate. She raised claims which included Race discrimination, Sex discrimination, victimisation and unfair dismissal. All the appeals arise out of decisions of the Employment Tribunal at London (North) under the Chairmanship of Mr P.R.K. Menon. Two Originating Applications - 961/95 and 621/97 - were heard and decided together and led to a majority decision on liability in the former IT1 and a unanimous decision as to no liability in the latter. The consequential decision on remedy in 961/95 was unanimous. Hackney appeals against parts of the liability decision which it lost and appeals also against the later remedies decision; Ms Wa Goro appeals against the liability decision in 621/97 by which her claims (or some of them) were dismissed. Mr Butler appears for Hackney, Ms Monaghan for Ms Wa Goro.

Ms Wa Goro began her employment with Hackney in November 1990. In October 1993 she was instructed to prepare gender guidelines for Hackney Secondary schools. Her research led her to a document prepared by Lancashire County Council ("LCC") - their "Equal Opportunities Gender" Report. She gave copies of it to Ms Emvar Ali, the Equalities Manager in her department and her immediate line manager and also to another Equalities Officer, Mr Gary Burton, (a black African-Caribbean) who from time to time "acted up" as Ms Wa Goro's line manager in Ms Ali's absence. She also spoke to Ms Coyle of the LCC but Ms Coyle did not give permission for any use to be made of the LCC document (although permission would very likely have been granted had it been requested formally in writing).

In terms of management, both Ms Ali and Mr Burton reported directly or indirectly to Mrs Janet Dobson, a white, the head of Strategic Services in the Directorate. Mrs Dobson reported to Mr Gus John, a black African-Caribbean, the Senior Personnel Officer in the Directorate.

On the 18th January 1994, Ms Wa Goro, having produced a draft report, she then discussed it with Mrs Dobson with a view to its presentation to the Education Committee on the 8th February 1994. The report which she prepared had a passage in it which said:-

"Most of the material has been derived from the issues arising in discussions with teachers, and governors, particularly in INSET, and with other practitioners and researchers in other LEAs' own institutions. Some of it is also derived from research of other good practice guidelines available."

Mrs Dobson suggested some minor amendments to the draft but commended Ms Wa Goro on the draft. Mr John presented it, in Ms Wa Goro's absence, to the Education Committee on the 8th February 1994. It was approved for circulation to school heads and governors for their comments. On the 19th July 1994 Mr John presented the final version of the document to the Committee.

The document that the Committee received was very extensively plagiarised from the LCC document. Ms Wa Goro had not told Miss Ali, Mr Burton, Mrs Dobson, Mr John or the Committee that that had been the case.

In late July 1994, whilst away on holiday but, she said, whilst checking the final draft of the document which had gone to the Committee, Ms Wa Goro, she said, had realised that by mistake it had been the LCC document that had gone to the Committee and not the document (albeit based thereon) which she had prepared for the purpose. She tried to contact Mrs Dobson and Mr Burton by telephone but neither was available. She then spoke by telephone to Hackney's principal solicitor, Ms Gurney, and told her that a mistake had been made. Miss Gurney reported the call to Mrs Dobson. Ms Wa Goro, said Miss Gurney, had been extremely upset. She had said that there were two versions on word processor disks; one was more up-to-date than the other and in error the earlier one had been used. Ms Wa Goro also reported the error to the Directorate's Deputy Director. However, Mrs Dobson was concerned; she had discussed Ms Wa Goro's draft with her in January and had not been told that it had been taken from the LCC document. She asked for a comparison to be made by Mr Burton between the drafts that had gone to the committee in February and July 1994 and the LCC document. Mr Burton reported back that pages 1-14 of the Hackney report were verbatim copies of pages 1-17 of the LCC document except for some words or phrases that had been changed and a few minor omissions. Mr Burton reported that in essence the Hackney report was a straight copy of the LCC one. Mr Burton felt strongly that Ms Wa Goro had "Thoroughly undermined our integrity and professionalism as Equalities Officers".

On the 23rd August 1994 Ms Wa Goro returned from her holiday. She was upset at Mr Burton's treatment of her and went off on sick leave. Mrs Dobson discussed the matter with the Directorate's Senior Personnel Officer, Mr Buckingham. They took the view that there had been plagiarism and a deception of Mrs Dobson, in not alerting her, in the discussion which she had had with Ms Wa Goro, of the use which had been made of the LCC document and of Mr John and of the Committee. They felt that there had been gross misconduct.

On the 23rd September 1994 Ms Wa Goro returned to work. Mrs Dobson met her and gave her a piece of paper which read:-

"The allegations are that the officer plagiarised a report of the Lancashire Education Committee and deceived and misled both the Director of Education and the Education Committee; also that the officer subsequently sought to deceive and mislead the Deputy Director and members in respect of the matter."

Mrs Dobson explained that she had power to suspend Ms Wa Goro and added that if the allegations were held proven she could be dismissed for gross misconduct. Ms Wa Goro, who had had no prior indication of concern from her managers, was asked to respond. She complained that these allegations should have been put to her in writing in advance in accordance with Hackney's Conduct Code and that she should have been given the opportunity to attend with her Trade Union representative. She denied the allegations but refused to comment further. She was told she could not remain in the building and that she was placed on leave; she was escorted out of the building.

Next there was an investigatory meeting on the 26th September 1994. Mrs Dobson told Ms Wa Goro that it was the first stage of the formal disciplinary procedure. Ms Wa Goro had attended with a colleague as no Union representative was available. At the meeting Ms Wa Goro was suspended.

A formal investigatory meeting was then held on the 28th September 1994. This time Ms Wa Goro was represented by her Trade Union. The allegations were put to her; she answered that there had been a mistake and that she had acted in good faith. Mrs Dobson indicated that she did not believe Ms Wa Goro's explanation to be satisfactory and that an "NOC", a "Notice of Complaint", would issue. Ms Wa Goro's suspension was confirmed.

On the 14th October 1994 an NOC was issued specifying in detail four complaints namely (broadly speaking) of Ms Wa Goro's having produced work as if it were her own but which was not, her putting it forward to Mrs Dobson and then to the Committee as if her own work in February 1994, her re-submitting it, similarly, in July 1994 and her misleading conduct as to her claim that a mistake (as to the word processing disks) had been made. The NOC indicated that it was believed that these actions constituted gross misconduct and, if proven, could lead to dismissal.

Ms Wa Goro responded on 19th October by saying that she refuted the allegations and that a full explanation would be given at the "LOH", the Local Officer Hearing.

Hackney's disciplinary code, set out in a publication entitled "The Purple Book" contained a provision which included within the definition of gross misconduct the concealment of any serious matter which should be reported. The Purple Book made provision for suspension, making it clear that it was not a punishment, but it did not prescribe a timetable. There was, though, a "Guide to Discipline" which did. The Employment Tribunal held:-

"The procedure for issuing a Notice of Complaint (NOC) and a Local Officer Hearing (LOH) - i.e. the disciplinary hearing, is set out ..... as to time limits; it is set out ..... as follows:

"The time limit from the employee's response to the Notice of Complaint (or the expiry of the deadline) to any formal hearing is normally 10 working days, but can be up to three months. Head of Personnel Services can extend this period for a Local Officer Hearing by one month in exceptional circumstances, but after this the complaint will lapse (except where the Director of Corporate and Information Services decides that this would be against the Council's interests)."

Hackney's disciplinary guide, if not contractual, was, impliedly, the procedure it usually applied and was the yardstick by which it was content to have its respective treatment of men and women and blacks and whites to be judged. As Ms Wa Goro had responded to the NOC on the 19th October 1994, the LOH should thus have been held, if no such extension was given, by the 19th January 1995 at the latest. Although the Employment Tribunal do not expressly say so, it is implicit in their reasoning that once an NOC had expired, the suspension related to the charges within it should also have lapsed at the same time. On that footing, and in the absence, as here, of an intervention by the Director of Corporate and Information Services, unless an extension were to be granted of, at most, one month, the suspension would have had to have ended not later than 19th January 1995.

There were a number of attempts to convene an LOH and each side, at one stage or another, had reason to seek a postponement or cancellation. It was also seen to be appropriate that someone from outside the Directorate of Education should be the Chairman of whatever LOH was convened. No extension of time for the LOH was applied for or granted within the three-month period from Ms Wa Goro's response to the NOC. Nonetheless, the suspension continued.

On the 22nd December 1994 or thereabouts Ms Wa Goro presented her first IT1, given a number ending 961/95. Beyond indicating that she felt that she had a case in sex and race discrimination it did nothing to explain what were the details of her case. Later she served Particulars in which she identified, albeit not by name, under the heading of "Race Discrimination", the cases of two white women who, she said, to an extent not unlike hers, had plagiarised works of other Local Authorities but who had not faced any disciplinary charges. She referred also to the case of a male officer who had used a document of another Local Authority without disciplinary action being taken against him. As we shall see, these three were later identified as Mr Burton, Ms Connor and Ms McCollum. She said that she had been treated less favourably on grounds of both race and sex by comparison with those three comparators. She said there was a custom and practice of sharing good practice which is tried and tested by all the local authorities, particularly those in the London area. She said that it was her understanding that several documents in Hackney had drawn their ideas and materials from other authorities and that there had been no disciplinary cases to answer in the other individuals' instances. Her Particulars mention that she had been suspended from duties in September of 1994 and faced charges of plagiarism and deceit. She could not, of course, at that stage complain that her suspension had continued even after the NOC had lapsed because, at that date, the NOC had not yet lapsed.

In its IT3 in 961/95, which was not put in until November 1995, Hackney set out that Ms Wa Goro had been suspended following allegations of plagiarism and of her having intentionally misled senior officers and members of the Council, that she had sought to mislead by reference to the mistake claimed to have been made as to word processing disks, that she had been issued with an NOC on the 14th October 1994, that the LOH had not taken place, that she had returned to work on the 12th June 1995 and that her comparators were not true comparators.

It was the case that Ms Wa Goro had returned to work on the 12th June 1995, there having been no LOH. Her suspension had thus continued long after the lapse of the NOC and without Hackney having told her that, the NOC having lapsed, she was in a position to return to work. Of the allegations in the NOC, there having been no LOH, the Tribunal said:-

"To this day they remain allegations only, not proven facts."

In the meantime, on or about 19th September 1995, the Employment Tribunal received another IT1 form which, confusingly, had completed within its details the number of her first IT1, 961/95. It was, it seems, accompanied by a document headed "Details of Complaint" and which contained complaints about matters later than the date on which she had lodged her original IT1, 961/95. Perhaps because of that the Employment Tribunal gave this form of IT1 a new and different number that ended 028/95. In a decision sent to the parties on the 9th April 1996 the Employment Tribunal (under a different Chairman) ruled that the original IT1, 961/95, was in time in relation to the complaint which Ms Wa Goro had made about her suspension but that the second IT1, 028/95, was out of time in relation to complaints not encompassed within her original complaint and that it would be not just and equitable for the Tribunal to grant an extension as to 028/95. It is not clear whether the Tribunal, on that occasion indicating that 961/95 was in time "in relation to the complaint which the applicant makes about her suspension" meant to include within that description her complaint, which they had earlier recited, that she had remained under suspension until June 1995, that is for a period of 9 months, although the Tribunal was then well aware of the complaint that 961/95 should not contain within it, as actionable complaints, events occurring after the date of its presentation.

On the 10th December 1996 Ms Wa Goro's employment with Hackney ended.

On the 29th January 1997 Mss Wa Goro presented her third IT1 (although the Tribunal call it her second). It was given a number ending 621/97. It was for race and sex discrimination, victimisation, wrongful selection for redundancy and unfair dismissal. In it she set out the background as in the earlier case, she referred to her suspension having lasted 9 months to the 12th June 1995, well beyond the period prescribed, she said, by Hackney's disciplinary code; she complained that Mrs Dobson had made it clear that when she was re-instated that she, Mrs Dobson, still believed in the veracity of the allegations contained in the NOC notwithstanding that the NOC had lapsed; she complained about not being re-integrated into the Equalities Team on her return and of being treated less favourably on racial grounds and on the grounds of her sex than Mr Burton; she complained of bullying and harassment by Mr Burton, that she had asked for a transfer to another section but that had been refused; she complained that Mr Burton had been assimilated into the one remaining post after the reorganisation in preference to her and that there was unfair treatment in the deletion of her post in that reorganisation. She claimed that the job specification for the new single remaining post had been drawn up by Mrs Dobson, tailored to give an edge or advantage to Mr Burton to her detriment and that she was, in effect, forced to take voluntary redundancy.

Hackney denied her allegations and claimed that Mr Burton had been appointed to the new Equality Officer post simply because in interview he had performed better than she had done and that interview performance had ultimately been the criterion for selection. Ms Wa Goro, said Hackney, had accepted voluntary redundancy and had asked to be released and her employment had thus terminated as at the 10th December 1996.

There was then a hearing at the Employment Tribunal spread between the 17th August 1999 and the 25th January 2000, with the Employment Tribunal sitting, as we have mentioned, under the Chairmanship of Mr Menon. The hearing of the combined 961/95 and 621/97 had taken some 10 days. Ms Wa Goro and four other witnesses were heard on the applicant's behalf; six witnesses were heard on Hackney's behalf. Of the comparators that we have mentioned, all, that is to say Mr Burton, Ms Connor and Ms McCollum, all gave evidence, as did Mrs Janet Dobson. The liability decision was sent to the parties on 30th March 2000. The majority decision in 961/95 was that Ms Wa Goro's complaints of sex discrimination and race discrimination succeeded; the unanimous decision in 621/97 was that the complaints of sex and race discrimination and victimisation under that originating application, and her complaint of unfair dismissal, failed. Ms Wa Goro, it was held, had not been unfairly selected for redundancy and had elected for voluntary redundancy. There was no unfair dismissal.

On the 8th May 2000 there was a hearing as to remedy in IT1 961/95. Hackney had sought an adjournment on the ground of an impending appeal as to liability and also because Ms Wa Goro had served a witness statement as to remedy (in part seeking to attack Hackney's Counsel's conduct of the case) only 15 minutes before the remedies hearing. The adjournment was refused. The decision of the Tribunal on remedy was sent to the parties on the 30th May 2000. It was unanimous. Hackney was ordered to pay to Ms Wa Goro £18,038 in respect of injury to her feelings, which sum included £2,500 in respect of aggravated damages and £5,538 as to interest. Hackney was also ordered to pay to Ms Wa Goro £2,437 in respect of loss of opportunity in obtaining jobs, which sum included £437 for interest. In all therefore the Tribunal awarded Ms Wa Goro £20,475 including interest. The Tribunal also made a recommendation under section 65 (1) (c) of the 1975 Act and section 56 (1) (c) of the 1976 Act that Hackney should agree with Ms Wa Goro and her representative an agreed employment reference in respect of the time she had served with Hackney.

As we mentioned earlier, the Tribunal's decisions have led to three appeals; Hackney appeals as to liability in 961/95 and as to remedy under that heading; Ms Wa Goro appeals against the failure of her claims in 621/97. We shall deal with the three appeals in that order but we should first mention that in neither 961/95 nor 621/97 were the Chairman's Notes of evidence, either of the liability or the remedies hearing, earlier applied for or available to us. At several points in this judgment we shall mention their absence. At one point during the hearing we invited the Appellant, in particular, to consider whether an adjournment in order to obtain them would be appropriate if issues raised before us were fully to be dealt with. However, Mr Butler shewed as little enthusiasm for them as did Ms Monaghan; there had been a conscious decision on Hackney's part not to seek them. We have thus proceeded in their absence.

Hackney's appeal as to Liability in 961/95.

Under this heading there are 5 sub-headings which we shall deal with in turn.

a. The Time Point

In different ways this point affects both 961/95 and 621/97. Hackney attempted to deploy the time bars of the general law and of section 76 of the Sex Discrimination Act 1975 and section 68 of the Race Relations Act 1976. In the former IT1, Hackney argued that Ms Wa Goro could not rely on post-IT1 events; they were too late. In the latter it argued that she could not rely (as actionable complaints) on matters more than 3 months before her IT1; they were too early.

As for events that were too late, Mr Butler argues that a directly discriminatory act by an employer against a current employee does not generally ground an originating application (an "IT1") unless a detriment related to the events complained of has occurred and is one to which the claimant has been subjected - see, for example, section 4 (2) of the 1976 Act and section 6 (2) of the 1975 Act. Here the relevant IT1, 961/95, was dated late December 1994. In turn, he continues, where the events complained of have not led to a detriment by the time of the IT1, there is, at the time of that IT1, no complete cause of action that can be asserted and that deficiency, argues Mr Butler, is not capable of remedy if, later, the claimant becomes subject to some detriment related to those events. If the IT1 was invalid as to a possible cause of action as at the presentation, the later subjection of the complainant to a related detriment does not validate it, nor can amendment be used to add causes of action not complete at the date of the IT1. Here, continues Mr Butler, of the detriments held by the Employment Tribunal to exist within the IT1 961/95, two of them post-dated the IT1 and, of course, thus could not have been, and were not, mentioned in it. The two he complains of are that, firstly, Hackney failed to complete its NOC-to-LOH disciplinary process against Ms Wa Goro and, secondly, that her suspension was for 9 months, contrary to Hackney's own Guide. It was open, he says, to the Employment Tribunal to consider events after the IT1 so far as they might throw useful light on what had happened at the date of and before the IT1 but it was not proper for the Employment Tribunal to have relied upon such events as components of causes of action in respect of which relief could be granted.

Had matters to be considered only in that rather abstract way we would have seen considerable force in Mr Butler's arguments. However, as we have seen, Ms Wa Goro launched another IT1, given number 621/97, on 29th January 1997. It was one of the two Originating Applications heard together, as we have mentioned, by the Tribunal below. She gave particulars under that number on 1st April 1997. The particulars spoke of continuing harassment, that her suspension (during disciplinary process) had lasted longer than Hackney's own procedures or recommendations authorised, longer than 9 months, and she spoke of events of and after June 1995 down to the termination of her employment in December 1996. Her particulars in 621/97 plainly put in issue as if matters of complaint in 621/97, rather than merely as matters of background, the two detriments which Mr Butler says could not properly have been regarded as components of any cause of action that could have led to relief. Certainly nothing in her particulars indicated that the events were merely ones of background and such as would not or could not be relied upon in respect of relief. Indeed, towards their foot, Ms Wa Goro "..... claims that all these actions .... from the initial suspension in 1994 to the final dismissal ... led to harassment, victimisation and discrimination on the grounds of race and sex".

No application to strike out or disallow such particulars seems to have been made in 621/97 and certainly none was ruled upon and, relative to the date of the IT1 in 621/97, the events asserted did not post-date the IT1, so the "events too late" point did not exist to be taken in 621/97.

Further, no attempt was made in 621/97 to strike out the particulars on the alternative basis (events too early) namely that, as at 29th January or 1st April 1997, the events so particularised were already out of date as having taken place more than 3 months before the presentation of, or the giving of particulars in, the 621/97 IT1. If such an argument had been punctually raised, shortly after the service of the particulars in 621/97, or even as a discrete point to be ruled on at the substantive hearing, Ms Wa Goro could have sought a "just and equitable" extension under section 76 (5) or section 68 (6) of, respectively, the 1975 and 1976 Acts. She appears to have had some possible grounds for such an extension as she had been ill for a while, her Union representative had suffered a bereavement, there had been a long period when a settlement under the aegis of ACAS had looked possible and it would have been arguable that there had been a continuing policy or practice of discrimination. It will be remembered that Hackney's IT3 in 961/95 was put in only in November 1995 so that her IT1 in 621/97 was not very long after Hackney's attitude in 961/95 had become clear.

The Employment Tribunal hearing, which began, as we have said, in August 1999, did receive an argument in 621/97 that the only act which it was said by Hackney could give rise to a remedy in that IT1 was not either of the two detriments now under discussion but no ruling was given on the issue and, so far as concerned evidence, the matter then proceeded, over some 10 or so days in all of the joint hearing of the two IT1s, on the basis, it would seem, that the two "detriments" now being considered were events which were proper to be investigated within 621/97 and had not been ruled out as not parts of the causes of action before the Tribunal. It does not seem to have been argued below (or, if argued, pressed) that the decision given (by another Chairman) in the second IT1, 028/95, barred reliance upon such events and the decision, as we have mentioned, was not clear on the point. Although (considering these detriments as possibly falling within 961/95) argument was raised as to the exclusion of post-IT1 events from matters grounding relief (which would have been the correct issue within 961/95) it seems not to have been pressed orally; there is, for example, nothing in the Employment Tribunal's extended reasons to suggest that Chattopadhyay -v- Headmaster of Holloway School [1981] IRLR 487, cited to us to indicate the limited rôle which is permissible for post-originating application events, was cited below, nor does the Employment Tribunal, which set out the statutory provisions which it took to be relevant, make any reference to section 76 of the 1975 Act or section 68 of the 1976 Act.

Nor (considering the events as possibly falling within 621/97) were authorities cited such as might have denied all possibility of the use of section 76 (5) or section 68 (6) in Ms Wa Goro's favour.

Some little confusion, though, in treating these detriments and complaints as within 621/97 does arise in that the Tribunal came to a conclusion on these two detriments in the part of their extended reasons that purported to deal with 961/95 (under which heading their inclusion was at least arguably objectionable as being of post-IT1 events, events too late) and not the part dealing with 621/97 (where it had been objectionable, if at all, as being of material that was too early). There is further confusion in that the Tribunal tacitly purported in their decision to reject the claims as to these two matters under 621/97 (under which Ms Wa Goro's claims all failed) notwithstanding that it had by then ruled in Ms Wa Goro's favour on them within 961/95.

However, what is clear enough in these circumstances is that Hackney can be seen to have fought and lost the issues as to these two detriments and it seems too formalistic to disallow Ms Wa Goro's victory on them, after all the evidence was heard, as having been given under the wrong heading or as being of events too early, given that, objection to these detriments having been raised below within both 961/95 and 621/97, it was not pressed with the support of authorities in the former and, as to the latter, if only it been raised punctually, it could perhaps have been countered by Ms Wa Goro's seeking an extension.

Although some confusion is thus undoubtedly visible in the Extended Reasons, the proper course, as the justice of the case seems to us to require, is to regard the case as to the two detriments as having been entertained and fully examined into under 621/97 and succeeding thereunder without error of law (on an implied footing that if the events were too early then an extension was appropriate) but with the outcome, for convenience, then being dealt with in the Tribunal's narrative as if it had been part of 961/95. On this basis the "Time point" does not assist Hackney in its appeal in either of the two Originating Applications. As we shall mention when we come to the appeal as to remedy, it is in any event unclear what effect the "Time Point" would have on the award in the case.

b. The Comparators; material differences between their cases and Ms Was Goro's?

Part of Ms Wa Goro's case was, of course, that she had been less favourably treated than Hackney had treated or would have treated others in circumstances which were the same or not materially different. She chose, as comparators who had been in circumstances which she asserted were not materially different, three fellow employees, Mr Burton, Ms McCollum and Ms Connor. All had, to a greater or lesser extent, been guilty of some form of plagiarism of the publications or materials of other local authorities but none had been the subject of a notice of charge, none had been suspended or had been the subject of protracted disciplinary consideration.

It is an important component of Mr Butler's argument here that in Ms Wa Goro's case there was, in relation to the use of the materials of other local authorities, not only a failure to acknowledge or make some attribution as to that use in Ms Wa Goro's work but that she deceived or misled others as to the sources of the work which came from her and which she thus appeared to have done. A true comparator, he thus argues, has therefore also to be a person who had, in a not materially different way, been responsible for some such misleading or deception. Mr Butler's argument here is two-fold; firstly, he says that the Tribunal wrongly failed to determine the question of whether the cases of all or any of the three alleged comparators afforded a truly acceptable comparison and, secondly, if the Tribunal had not so avoided that issue, it would have had to have held that none of the three was an acceptable comparator.

Mr Burton (a black sex discrimination comparator) had in 1994 produced a document for Hackney which was drawn up from a document produced by the London Borough of Harringey. Mr Burton's draft and later final form went to the Hackney Education Committee in February and July 1994 respectively. He did not acknowledge the "borrowing" or make attribution to Harringey as one of his sources. However, importantly, it was Hackney's own case that Mr Burton had not deceived or concealed anything material from his managers. Miss Dobson's evidence, as the Tribunal held, was that both she and her superior, Mr John, knew that Mr Burton was using the Harringey document as source material.

Ms McCollum (a white race discrimination comparator) had worked for Hackney on a document entitled "Women and Domestic Violence" which, with modifications and additions, was based on a document which had been produced by the London Borough of Hammersmith. Hammersmith has complained and required a fee. Miss McCollum reported to the head of the Hackney Women's Unit and told her that she, Miss McCollum, was re-writing the pamphlet, still using the Hammersmith document as her base but simply re-jigging the word orders in sentences and that was done, without any attribution to Hammersmith.

Ms Connor (a white race discrimination comparator) was involved in the publication of Hackney's Compulsory Competition Tendering Handbook, the core of which had been based on another local authority's booklet, without, at first, the draft containing any acknowledgement or attribution, though that was later done by way of inserts. There is no finding that Ms Connor's superiors did not know of her borrowing and the use of inserts rather suggests that they probably did.

The Tribunal was unwilling to test the comparators and Ms Wa Goro's comparability by reference to the extent to which they or she had "borrowed". Not only would it have led, we would guess, to a somewhat disproportionate expenditure of time in making comparisons between pairs of documents, not all of which might still have been available, but there was a background in which plagiarism of the good practice and procedure of other local authorities was the norm and was condoned (the widely expressed sentiment being that there was no need "to re-invent the wheel"). Moreover, there had been, over time, a changing attitude to copyright which would have made comparisons difficult. Crucially, perhaps, as the Employment Tribunal held, Hackney had given no guidelines to its employees on the subject. In not seeing the extent of borrowing as a matter on which a truly material conclusion could be reached or had to be attempted, the Tribunal, in our view, was committing no error of law but rather was recognising the practical and other difficulties were the Employment Tribunal to attempt to draw a line between, for example, a "borrowing" of 65%, of 85%, or of 100%.

The extent of the respective borrowings being thus discarded (without error of law) as a yardstick, the main remaining argument as to the incomparability of the three comparators with Ms Wa Goro thus became the extent of his or her involvement in deception. If it had been plain that the Employment Tribunal regarded Ms Wa Goro as guilty of a material degree of deception then we would have seen force in an argument that the comparators were not true comparators and hence that Ms Wa Goro could properly have been treated more sternly than they were without the disparity creating a finding of discrimination. However, the Employment Tribunal held that Ms Wa Goro had given copies of the Lancashire document to her line managers, Mr Burton and Ms Ali, both of whom gave evidence. Mr Burton's written evidence was that that was probably before Ms Wa Goro submitted her report to the committee. Ms Wa Goro's written evidence was that Ms Ali well knew of Ms Wa Goro's use of the Lancashire document and moreover knew also that Lancashire had not given written authorisation for its use. She also deposed that she knew that then or thereabouts Ms Ali had spoken to Miss Dobson. We do not have Chairman's Notes (and we do not mean to suggest that Ms Ali did tell Mrs Dobson this) but there is no finding that Ms Ali did not tell Miss Dobson that Ms Wa Goro had used the Lancashire document, nor is there any finding that Ms Wa Goro knew that Miss Dobson did not know of its use.

In the circumstances we cannot say that the majority's rejection of a distinction between the comparators' and Ms Wa Goro's cases, based on an assertion that Ms Wa Goro was guilty of deception whereas they were not, was impermissible. We cannot pretend that the majority's conclusion was the only possible one and the minority's view that the three were not true comparators has considerable force. However the majority concluded:-

".... In our view Ms McCollum (in relation to the Hackney Women's Unit document which was based on and not attributed to Hammersmith and Ms Connor in respect of the CCT document) are appropriate comparators in relation to the race discrimination complaint and Mr Burton is the appropriate comparator in the sex discrimination complaint ...."

There is in our view, no error of law in that conclusion.

It is true that the Employment Tribunal shirked an investigation into whether Ms Wa Goro, sometime after her work had been passed to the committee, had lied about there being a later word processing disk which contained a less plagiarised document and which represented her true work and that there had been a mistake in that the typing had mistakenly been done from the earlier wrong disk. However, given that the Employment Tribunal held that both of her line managers had been given copies of the Lancashire document by her, it would not follow that she knew or must have known that Mrs Dobson had not been aware that the Lancashire document had been plagiarised or that the work which Ms Wa Goro presented was not her own or that she was guilty of any other deception of her staff colleagues. Any material deception of the Committee is even harder to regard as a subject which should clearly have been ruled on by the Tribunal below as at first blush both Mr Burton and Ms McCollum may well not have themselves explained their respective "borrowings" to their Committee and in any event Ms Wa Goro was absent from the presentation to the Committee in February 1994. We would have preferred that the Employment Tribunal had ruled on the issue as to the later disk but we cannot hold that, given the material laid before them, the issue was so material that a failure of the Tribunal to do so was, of itself, an error of law. With deception of staff colleagues left unproven and deception of the Committee not attempted to be proved in any detail, even an untrue explanation, (if such it was), voluntarily offered by Ms Wa Goro before any questions of plagiarism had arisen, would not have been likely to have justified an NOC or, if an NOC was justified, a lengthy suspension.

Accordingly, Mr Butler's argument does not succeed on either of its limbs; the majority of the Tribunal did determine that the three comparators did afford a truly acceptable comparison and they did do so without error of law.

c. Was there discrimination on racial grounds?

There were significant differences between the way in which Ms Wa Goro was treated and the way in which the comparators had been treated. Ms McCollum was subject of no disciplinary action and was not suspended. Ms Connor had no disciplinary charges made against her. There is no finding that any disciplinary process was launched against Mr Burton. Leaving aside the different treatment of the comparators, the Tribunal commented on the fact that Mr Yeboah, Hackney's then Assistant Chief Executive (Human Resources), had advised Mr John that in the local government context it was untenable to charge an employee with gross misconduct for using a policy document from another authority. Mr Yeboah reiterated similar advice in the clearest terms to Mrs Dobson, namely that the suspension of Ms Wa Goro for plagiarism was untenable and unsustainable under Hackney's disciplinary code. The Tribunal held that no satisfactory explanation had been given as to why that advice was ignored. It would seem that Hackney had not sought to explain the difference in Ms Wa Goro's treatment from that of her three comparators other than by asserting, as it transpired unsuccessfully, that the three were not properly to be regarded as true comparators. The Tribunal specifically held by a majority that there was no satisfactory explanation given to them as to why the LOH hearing had never taken place nor of why the suspension had lasted nine months (September 1994 to June 1995) although the notice of charge had expired in January 1995. The majority continued:-

"There has been no satisfactory explanation for uniquely singling her out for such detrimental treatment in comparison with Ms McCollum, Ms Connor and Mr Burton and contrary to the usual practice in similar situations. In the absence of any satisfactory explanation by Hackney the majority of the Tribunal draws the inference that Hackney discriminated against the applicant on the grounds of her sex, contrary to ...."

and the Tribunal then set out the relevant sections as to both discrimination under the 1975 and 1976 Acts.

Where there is, as here, a difference in sex or race or both and where there is, as here, a number of acts which invite explanation but which are given only an unsatisfactory one, then it is legitimate for an Employment Tribunal to infer that there has been discrimination on racial or sexual grounds or both - King -v- G.B. China Centre [1991] IRLR 513 at 518 paragraph 35; Glasgow City Council -v- Zafar [1998] H.L. ICR 20 pps 25-26. It is true that the Employment Tribunal here does not say precisely why it drew the inference but we do not see that it is invariably necessary for that to be done. The basic facts from which the inference was drawn were spelled out. If the Employment Tribunal majority had specifically said that, after examining the papers and after seeing and hearing the witnesses over some 8 or more days, that inference was the only or most probable reason the Tribunal could find which would explain Hackney's behaviour, the inference would surely have had to be taken to have been adequately explained. Yet to have added that would, as it seems to us, have been no more than specifically to have set out that which would in any event be implied. The fact that the minority member of the Employment Tribunal, for cogent reasons, accepted Hackney's explanation as satisfactory proves only that it was a subject upon which two views were possible; it does not establish that the majority erred in law in drawing the inference which they did.

d. Perversity

In a case in the Court of Appeal the judgment of which was released only after the conclusion of the hearing before us, Yeboah -v- Crofton [2002] EWCA Civ 794, 31st May 2002, as yet unreported other than in the Times, Mummery L.J. said:-

"When the principal ground of appeal is, as here, perversity of the decision of the fact-finding Tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on the question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the Court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the Chairman's Notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal."

We did not call back Counsel to comment on that passage as it is not so much novel as, rather, a clear, recent and authoritative setting-out of the law as it has been well understood for some while and such as could be derived from the cases which Ms Monaghan did cite to us. To the difficulties which Mummery L.J. refers one might add that here Chairman's Notes have not been made available or even sought. Even if they had, there would be the further difficulties to which Lord Hoffmann refers in Piglowska -v- Piglowski [1999] 1 WLR 1360 H.L..

It is against a background of law of that kind that Mr Butler seeks to argue that the majority's commentary on events in its paragraph 29 (3) is unsustainable to the point of perversity. In that paragraph 29 (3) the Tribunal concludes that Mrs Dobson did not approach the investigatory meeting with Ms Wa Goro with an open mind, that Ms Wa Goro was never given a chance, as she would have been at a more formal LOH, to explain her case as to her telephone call in which she had asserted that there was a missing disk and that no attempt was made by Hackney to determine how much plagiarism was acceptable or not acceptable in terms of its past practice. The Tribunal majority regarded the meeting as one in which Mrs Dobson had decided that the applicant was guilty of deception and plagiarism and that the meeting was thus chiefly to look at mitigation and sanction.

The notes of the investigation meeting of the 26th September 1994 do not pretend to be verbatim throughout and it is plain that from the outset Ms Wa Goro felt that she had been misled as to the nature of the meeting; she had understood it was to be informal, which was not Hackney's understanding. Ms Wa Goro said that if she had known it was going to be formal she would have got a Trade Union representative. She was given an opportunity to respond but not one in which she would have had the protection, that would have been accorded to her at an LOH, of having a Trade Union representative at her side and possibly even a lawyer. After the case against her was explained Ms Wa Goro protested that that was the first time the case had been put to her and that she had asked for time off to respond to the grave allegations put to her. She said that she totally refuted the allegations. She said:-

"I feel I should reserve my response to another time when I can respond."

Another meeting was convened for the 28th September 1994. It was at this second meeting that Ms Wa Goro advanced the explanation that there was somewhere, either at work or at her home, a version of the report of hers which was not simply an adoption of the Lancashire document and that there were many versions of the document, on three computers, that in her absence the wrong one had been typed up and that instead of getting a version on which she had worked more extensively the committee by mistake received a report which was, to all intents and purposes, simply the Lancashire document. The Tribunal said:-

"The applicant was never given a chance, as she would have been at a LOH, to explain her original telephone call regarding the missing disk."

As we have mentioned, Ms Wa Goro had, whilst on holiday, volunteered that a wrong document, the Lancashire document, had been what the Committee had ended up with.

The citation which we have just made from the Tribunal is best understood if one underlines the words "as she would have been at an LOH". It cannot be fairly said that Ms Wa Goro was never given a chance to explain herself at the two meetings in question but it was not a chance as it would have been at an LOH. At an LOH she would have had prior notice of precisely what was being said against her, would have had time to consider and prepare an answer and would have been likely, in what was potentially a dismissal case, to have been accompanied by a Trade Union or professional representative. In the absence of not only Chairman's Notes but of any indication at all of the questioning that was raised and the answers that were given at the Employment Tribunal in relation to the investigation meetings of the 26th and 28th September and mindful of the difficulties in any finding of perversity which the passage from Yeboah supra emphasises, we do not feel able to describe any of the conclusions in the majority's paragraph 29 (3) as perverse.

e. The Form of the Extended Reasons

We would accept, to use an expression used by Leading Counsel in another case, that one should not have to "decode" a Tribunal's decision and we also accept that this decision is very far from being a model of its kind. However, it will only be in the rarest of cases that a failure as to form rather than content will be capable of being described as being a material error of law. In particular, we do not see the decision as failing the Meek test in any way that has been identified to us - see Meek -v- City of Birmingham D.C. [1987] IRLR 251 at para 8; the parties are told why they lost and won and are so told with a sufficient account of the facts and reasoning for it to be seen by us or by a higher Court whether questions of law arise.

Conclusion on Hackney's appeal as to liability

For the above reasons we dismiss this appeal.

2. Hackney's appeal as to remedy

Mr Butler's skeleton argument concedes that the question of whether the remedies hearing should have been adjourned is now largely academic. As it is such, we see no reason to deal with it. In any event we would doubt whether we have sufficient material to come to a fully informed decision on the point. That leaves, as we have understood the oral argument, 4 main assertions, namely:-

(i) that the award of £10,000 for injury to feelings is said by Hackney to be excessive;

(ii) that the Employment Tribunal paid regard to post-originating application events which should, says Hackney, have been left out of account;

(iii) aggravated damages were, asserts Hackney, inappropriate;

(iv) account was taken by the Employment Tribunal of publicity said to be harmful to Ms Wa Goro, as to which, says Hackney, there was no evidence and as to which they had no opportunity to answer as to the effect, if any, of the same on Ms Wa Goro.

We will take these questions in turn.

(i) £10,000 for injury to feelings

Ms Wa Goro put in a witness statement for the purposes of the remedies hearing that spoke of distress, humiliation, hurt, anxiety, loss of health, loss of career and of career prospects, loss of friends and general disruption of her life. What impact her evidence had or should have had upon the Tribunal is impossible for us to judge, our not having heard the evidence nor even having Chairman's Notes of Evidence in respect of it. It may, though, be appropriate for us to remind ourselves of what the Employment Appeal Tribunal said in Gbaja-Biamila -v- DHL Ltd. [2000] ICR 730 at p. 747 where the EAT said:-

"In considering a subject as nebulous as injury caused to feelings by racial discrimination, a matter so personal to the complainant affected, so potentially variable from one complainant to another and so dependent on surrounding circumstances, the importance of the advantage enjoyed by those who have, over a period, seen and heard the complainant giving evidence is hard to exaggerate, especially where there is little or no reliable independent medical, psychiatric or physiological evidence."

Mr Butler has not identified any error of law in the general directions which the Tribunal gave itself in relation to injury to feelings and we are unable to see the case as one of those where the size of the award itself suggests that there must have been error of law.

(ii) Post-IT1 events